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Is fracking regulation a federal issue?

The views expressed are those of the author and are not necessarily those of Scientific American.

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A couple of items about fracking regulations worth keeping track of. First, the Associated Press reports that the comment period is being extended by 60-days for a new rule that will regulate hydraulic fracturing on public lands. The 171-page rule would require companies who drill for oil and natural gas using hydraulic fracturing to disclose chemicals used in the process.

And second, the question of who should regulate hydraulic fracturing: the federal government through a set of baseline standards, or individual states. The Wall Street Journal offers two competing arguments for whether the federal government should regulate hydraulic fracturing. Arguing in favor of federal standards is Jody Freeman, professor of law at Harvard University and formerly counselor for energy and climate change at the White House. Arguing in favor of state regulation is David Spence, professor of law at The University of Texas at Austin. Please read the full arguments here.

Here is Freeman’s main point:

At scale, fracking requires vast amounts of water, which can reduce regional supplies. And industrializing the countryside not only disturbs locals, it can harm habitat and wildlife.

States aren’t fully up to the task of regulating these risks. And the problems inevitably cross state borders, making them a national issue.

A study by Resources for the Future, an independent research organization, showed that state standards for well integrity, wastewater management, disclosure of the content of fracking fluid and other aspects of drilling vary considerably, and some states lag far behind others. The same study reported that state enforcement capacity is generally lacking, and even states experienced with oil and gas are struggling to keep up with the pace of drilling.

And David Spence with the counterpoint:

In general, the federal government should regulate when the important impacts of the regulated activity cross state lines, when states cannot regulate efficiently or when national interests are at stake. None of these justifications apply to fracking.

Only a few of the risks of shale-gas production—methane leakage, for example—extend beyond state lines. And the Environmental Protection Agency is addressing those interstate risks already, using its existing regulatory authority.

As for the argument that states just can’t handle the job of regulating, it is true that regulation lagged behind the industry’s growth in some states at first. But states are quickly adapting. States are strengthening their shale-gas regulations to tighten well-construction and waste-disposal standards and require disclosure of fracking-fluid ingredients, sometimes bringing industry and environmental groups together in the process.

They’re also coming up with regulatory systems that fit local conditions. Different rules for different states are necessary to match the local geography—for example, drillers may use different drilling specifications or wastewaster-disposal methods, depending upon the location.

Texas is at the center of hydraulic fracturing and recent action by the state’s oil and gas regulatory body, the Texas Railroad Commission, highlights some of the points made above. In May 2013, the Commission updated a “well integrity rule” that tightens standards around drilling and securing wells. Environmentalists, drilling companies, and state regulators appear to have reached an agreement on rules that address some risks with drilling and casing wells and respect the local conditions. You can read the ruling here (PDF).

Kate Galbraith, writing for StateImpact Texas, summarizes the regulatory atmosphere in Texas:

The Texas Oil and Gas Association praised the new rule. “We commend the commission’s efforts because the new rule enhances transparency, reflects advances in technology and is technologically feasible for operators to implement,” Deb Hastings, a vice president of the association, said in a statement.

Environmentalists issued qualified praise for the new rule. “Overall this is a very important rule that sets a higher bar for both traditional and hydro-fracking well drilling and casing,” Cyrus Reed, conservation director of the Sierra Club, said in an email. He said he wished at least one technical aspect of the rule were stronger.

One subtext of the new rule is concern about potential new federal requirements for drillers. Barry Smitherman, the commission chairman, testified before a U.S. Senate committee in Washington on Thursday.  He said that some in Congress were wondering whether federal “baseline” standards for hydraulic fracturing were necessary, and he pushed back.

“State regulators are being proactive in regulating this incredible industry, and no federal baseline is necessary because we are the agency closest to the ground,” Smitherman said on Friday.

Regardless of federal action, Texas is moving full steam ahead.

Disclosure: David Spence is a former professor of mine from UT Austin. Image: MIRA OBERMAN/AFP/Getty Images

David Wogan About the Author: An engineer and policy researcher who writes about energy, technology, and policy - and everything in between. Based in Austin, Texas. Comments? Follow on Twitter @davidwogan.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. sault 4:19 pm 06/6/2013

    Federal regulation of activities on federal land is a given, so these new rules should be uncontroversial. As for federal regulation on other pieces of land, we really need to repeal the exemptions from the Clean Air and Clean Drinking Water Acts that fracking enjoys before we start hashing out which level of government is responsible for regulating which activity. Until the government stops picking winners and letting certain industries play by different rules, the debate on this issue will always be distorted.

    As for state vs. federal regulation in general on this issue, geologic factors may play a role in determining state regulations, but air pollution absolutely does not respect state boundaries and human physiology does not magically change when crossing state borders either. Just like with vehicle emissions standards, the federal government should institute a baseline and states can impose stricter standards if they so desire. The federal standards would of course take into account regional / state differences and strive towards preventing any “one-size-fits-all” regulations that would be overly burdensome. However, it is much easier for some of these drilling companies to influence state governments and regulators than it is for them to influence federal regulators. Therefore, the federal government should set minimum standards on well casing integrity for instance, or methane leakage rates (since Climate Change automatically makes certain aspects of drilling an inherent federal issue anyway) or other federal aspects of drilling and then leave inherently regional or even site-specific regulations come from states or local governments. Again, repealing the special exemptions that fracking enjoys from environmental regulations that everyone else has to abide by is just the first step in exploiting shale gas reserves responsibly.

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  2. 2. singing flea 8:14 pm 06/6/2013

    The industry would love to deal with only state laws concerning this matter. This is a no brainer. States tend to use local zoning laws to establish policies. Local politicians are as a rule poorer and easier to buy. Accepting gratuities from lobbyists to determine the suitability of a particular industry is the feeding trough of these local governments. Corporate lawyers just need to figure out how to sway politicians to change the zoning laws and regulations and like magic anything is possible without that nosy EPA and other federal regulatory agencies getting involved.

    I personally detest the growing federal monstrosity that has taken over every aspect of our lives lately, but without them we would be worse off. Corporations are not real people too. They don’t have souls, they have stockholders and anyone with a wit of sense knows that greed transcends all morals. It is no coincidence that it is greedy rich people who own the vast majority of the stocks in America.

    Our only defense is to have one set of rules that applies to all in this industry or it will gobble up the weakest states first and move on to the rest when opportunity for corruption rears it’s ugly head and those states dry up.

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  3. 3. bwiley1 12:02 pm 06/9/2013

    I’m all for appropriate regulatory oversight, but it seems to me there are some business competitive issues, even intellectual property issues, that need to be understood. “Fracking” isn’t this one “thing”, any more than “nanotechnology” is. It is a word used to collectively describe a broad range of processes and procedures used to produce a result. It is well understood that different geologies require different methods. What works in Eagle Ford doesn’t translate to the Bakken, which doesn’t translate to the Monterrey, etc. Different companies work hard to find what works best for the specific geology target. When they find the right “mix” to produce the right production at the right cost, those companies have a strategic competitive advantage.

    I’m all for requiring them to divulge that “mix” to insure the environment isn’t getting poisoned, but there are two primary issues when it comes to the divulgence of that information that need to be properly managed. One is insuring the confidentiality of the “ingredients/methods/etc.” so that competitive advantages can be maintained as proprietary. The second boils down to the “expertise of the government reviewer”. Not to insult any capable government workers out there but let’s face it, how many government employees will be capable of performing the analysis? Will it require some sort of FDA-like agency, eventually ballooning into a bureaucracy and several years of “multimillion dollar field trials” before unique “ingredients/methods/etc.” can be deployed?

    Not trying to raise scare tactics, honestly, but these are complex issues and whomever handles the oversight needs to be sure to mitigate them.

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  4. 4. sault 3:57 pm 06/9/2013


    The problems is that federal law sees “fracking” as one, single activity and treats it accordingly (or just looks the other way in many instances). Also, the government works with proprietary data from contractors all the time, so this is a non-issue. Finally, a lot of the oversight problems stem from the fact that there are thousands of drilling sites spread out over large areas and a vanishingly small number of regulators to handle them all. When we cut the budgets of some of these agencies, you get disasters like the plant explosion in West, Texas. If you adequately fund these agencies (good luck given the political discourse on government workers and regulations in this country), then you will be able to attract and recruit the right people for the job.

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  5. 5. Enviro_Equipment_Inc. 11:24 am 06/10/2013

    One more reason to have the Feds regulate hydraulic fracturing operations is because states cannot be relied upon to enforce their own existing rules. Just the other day there was a report (i.e. which found that 20%+ of the reports to for Hydraulic fracture in wells jobs in Colorado and Pennsylvania were filed late and weren’t penalized for missing the deadlines, even though they were mandated to do so.

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